Justice extends to Bagram, Guantánamo’s Dark Mirror

6.4.09

Since coming to power in a blaze of reforming glory, promising to close Guantánamo within a year, to stop the CIA from running offshore torture prisons, and to restore the Geneva Conventions to prisoners seized in wartime, the Obama administration has proceeded to make a number of poor decisions in relation to its predecessors’ reviled “War on Terror” policies.

One was the decision to invoke the state secrets privilege to quash a lawsuit against Boeing subsidiary Jeppesen for its role as the CIA’s travel agent in a case brought by a number of prisoners subjected to “extraordinary rendition,” although this was understandable if the floodgates were not to be opened with regard to everyone involved in the Bush administration’s lawless policies rather than, say, the senior officials who authorized the crimes. Another, I believe, was the refusal to substantially redefine the terms of reference for “enemy combatants,” while the administration was scoring a propaganda point by dropping the use of the term.

There are, of course, many challenges to come — not least, the question of prosecutions for senior officials (from President Bush down), which Obama is clearly unwilling to tackle — but so far the poorest decision came in February, when, in its first response to habeas corpus claims filed on behalf of four prisoners held in the US prison at Bagram airbase, the Justice Department responded to a request by District Court Judge John D. Bates, asking if the new administration would like to review the position maintained by the Bush administration — essentially, that the prisoners in Bagram have no rights — by stating simply, in a one-paragraph response, “This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position.”

What made this decision so poor was that the situation in which these men found themselves was essentially the same as that experienced by the prisoners in Guantánamo. The men in question — Redha al-Najar, a Tunisian seized in Karachi, Pakistan, Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand, Fadi al-Maqaleh, a Yemeni, and Haji Wazir, an Afghan businessman seized in the United Arab Emirates — were all captured between five and seven years ago, and transferred to Bagram, where only an administrative accident — or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantánamo — prevented them from joining the 779 men in the offshore prison in Cuba.

Moreover, what made the Bagram prisoners’ situation even worse was that, whereas the prisoners in Guantánamo had, over the years, secured habeas corpus rights (the right to challenge the basis of their detention in a court) and the right to meet with and be represented by lawyers, none of these privileges had been extended to the prisoners in Bagram. Their isolation meant that, increasingly, the prison in Afghanistan — which was, and is, under the complete control of the US military — was nothing less than Guantánamo’s Dark Mirror, or, as Judge Bates suggested in a review of the men’s cases in January, “a ‘black hole’ for detainees in a ‘law-free zone.’”

At the time, Judge Bates was only hinting that he thought it might be necessary to extend habeas rights to these particular prisoners in Bagram. In February, of course, the Obama administration thought that it had crushed his nascent dissent, when it declared, with an imperiousness that was reminiscent of Dick Cheney and David Addington, that the reach of the law did not extend to Bagram.

However, last Thursday, after studying closely the differences between the prisoners held at Bagram — in other words, between foreigners captured in other countries and “rendered” to Bagram, Afghans captured in other countries and “rendered” to Bagram, and Afghans captured in Afghanistan — Judge Bates ruled (PDF) that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, “the detainees themselves as well as the rationale for detention are essentially the same.”

What this involved, to recap on Boumediene, was that the government had no right to revoke the Suspension Clause of the US Constitution, under the Military Commissions Act of 2006, to prevent the prisoners from seeking “the protection of the writ of habeas corpus,” because, as the Supreme Court made clear, “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”

The Supreme Court also noted that “the Judiciary — not the Executive — must decide when and where the Suspension Clause applies,” and, also drew on a case from 1803, which stated, “The writ of habeas corpus itself is an indispensable mechanism for monitoring the separation of powers …The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain.”

Judge Bates added that the military’s justification for holding the prisoners at Bagram involves a review process that is both “inadequate” and “more error-prone” than the tribunal process used at Guantánamo (which has, of course, been condemned by former officials who worked on it, including, in particular, Lt. Col. Stephen Abraham), and concluded that the US military’s control over Bagram “is not appreciably different than at Guantánamo.”

His précis of the review process was, in fact, genuinely disturbing, as he quoted from a government declaration which stated that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram does not even allow the prisoners to have a “personal representative” from the military in place of a lawyer (as at Guantánamo), and that “Bagram detainees represent themselves.” In addition,

Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. [The government’s] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.

This Court need not determine how extensive the process must be to stave off the reach of the Suspension Clause to Bagram. It suffices to recognize that the UECRB process at Bagram falls well short of what the Supreme Court found inadequate at Guantánamo.

Judge Bates also explained that, although Bagram is “located in an active theater of war,” and that this may pose some “practical obstacles” to a court review of their cases, these obstacles “are not as great” as the government suggested, are “not insurmountable,” and are, moreover, “largely of the Executive’s choosing,” because the prisoners were specifically transported to Bagram from other locations.

As with the Supreme Court’s ruling in Boumediene, Judge Bates was also concerned by the length of time that the prisoners have been held without an adequate review of their cases. As he explained, “the Supreme Court’s observation in Boumediene is equally powerful here: ‘the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.’”

Nevertheless, although Judge Bates ruled that the three foreign prisoners could challenge the basis of their detention, he refused to extend habeas rights to the Afghan prisoners who make up the majority of the 670 or so prisoners held in Bagram, agreeing with the government’s claim that to do so would cause “friction” with the Afghan government, because of ongoing negotiations regarding the transfer of Afghan prisoners to the custody of their own government. As a result, he also refused to extend habeas rights to Haji Wazir, even though he was captured outside Afghanistan, although he did not dismiss his claim outright, and wondered whether there was any other mechanism whereby he might seek habeas relief.

On SCOTUSblog, Lyle Denniston noted that this part of the ruling “seemed to suggest a potential impact of the ruling for detainees in places other than Bagram,” as Judge Bates stated that one possible route, about which he requested further briefing, involved ascertaining whether Congress “usurped” the constitutional authority of the federal courts, in the Military Commissions Act of 2006, when it prohibited habeas claims by any prisoner in US custody, anywhere in the world, who was held as an “enemy combatant.”

In conclusion, then, this was an extraordinarily important result for those who have been struggling for years to secure rights for the prisoners in Bagram –- in particular, Tina Foster and Barbara Olshansky of the International Justice Network, who first filed the cases in October 2006. Judge Bates gave the government until April 23 to respond to his question about Congress usurping the federal courts’ constitutional authority, and gave Haji Wazir’s lawyers until May 7 to respond to the government’s brief. As for Redha al-Najar, Fadi al-Maqaleh and Amin al-Bakri, their cases now move to a detailed review, with Judge Bates taking the cases of al-Najar and al-Maqaleh, and Judge Ellen Segal Huvelle taking the case of al-Bakri.

Expect sparks to fly, as, in addition to being held for up to seven years without charge or trial, it appears that some, if not all of these men passed through a secret prison network in Afghanistan, which involved brutal torture, before they even arrived at Bagram.

29 Responses

Judge Bates served in the U.S. Army in Vietnam, which may inform his compassion. I was struck by the equal measures of intelligence and kindliness shining out of his court photo. He is certainly distinguishing himself.

I guess Aafia passed through that sally port. I wouldn’t be surprised if a substantial piece of her soul is still tangled up in that wire.

Frances, Andy : I would like to know how to get in touch with Aafia and her lawyers. Would U please advise? I don’t know how to access this information. I may have received an email from U on this, Frances as U suggested. However, I don’t know what to watch for unless the heading is very clear as I get many emails? Thanx for occasionally bringing her up & all the other magnificently compassionate work each of U do (& many others who contribute to these articles and Comments as well!)

They appealed Judge Bates’ decision. Had they accepted the reality that prisoners kidnapped/captured around the globe and sent to a military prison in an active theater of war are not legally in any different position than the Guantanamo prisoners, we’d be able to feel that at least we were on a solid floor.

The decision to appeal, and the horrible Bush&Cheney-like language of the appeal filing (highlighted in Glenn Greenwald’s recent post, from the NYT coverage) actually goes further than the previous administration. In combination with the reports of prisoner defense lawyers across the board that the same stonewalling and arbitrary secrecy is in force as during the previous administration, it’s impossible to imagine them going any route but trying to recreate the Bush system in different locations and with different language. They’re clearly going to try to set up a two-tier judicial system so that they don’t have to release any but a very small number of Guantanamo prisoners.

In short, the situation under the new administration is worse than the lowest expectations of all but the most cynical observers.

Hi Nell,
Thanks for the comment, bleak though it is. I’m actually late in responding (a) because I took a holiday and (b) because on my return I spent several days entertaining my friend and fellow blogger the Talking Dog and his family, which led to numerous discussions about the “flexibility” that the Obama administration wants to maintain, as opposed to what is really required: a clear and unambiguous repudiation of all the crimes of the last eight years.

I think that Bagram is part of this “flexibility,” but the sad truth, of course, is that there’s no possible justification — given the evidence of the three types of prisoners that Judge Bates finally managed to understand — for withholding habeas rights from the foreign prisoners captured outside Afghanistan.
We’ll see what happens. I too am enormously disappointed that the Obama administration has chosen to appeal Judge bates’ ruling — and, as TD and I also discussed ad infinitum — am also bitterly disappointed that Obama is not only dragging his heels over Guantanamo releases, but also seems, with his review team, to be challenging the courts’ post-Boumediene mandate to deal with the prisoners’ cases.

However, I remain — dare I say — optimistic that the majority of the prisoners will be released without charge within the one-year limit, accepting, of course, that Obama does indeed move to accept the Uighurs into the US, thereby encouraging other countries to accept other cleared prisoners.

But it is an unholy mess, and your closing comments should be a rallying call to maintain pressure on the administration.

And while I’m doing a round-up of responses, thanks, as ever, for your considered comments, Frances, though I believe that, given his record, Judge Bates was not necessarily expected to demonstrate such intelligence and kindliness — although he has, as you say, certainly distinguished himself in this case.

US + Israel = madness..
Imprisonment of thousands without rights of appeal.
Displacement of millions without any form of compensation.
Death and destruction.
Threats and sanctions.
makes you wonder if there is anything positive with either regime or their policies.
so many homeless, jobless, imprisoned, ill with inadequate health care in the US but still the US/Israeli war machine takes priority..
I wondered if you would take on the Bagram problem as well.
at least you are doing something to put some of the madness right..
Ingrid B.
Norway.

Thanks, Ingrid. Good to hear from you.
I guess sometimes it’s difficult to believe that the small gestures will amount to much — especially when it comes to the homicidal apartheid that dominates one particular part of the Middle East, but the only other choice is apathy and despair …

[…] Some (beyond the 14) may have also been transferred to Guantánamo, others are undoubtedly still held in Bagram, and others have been returned to the custody of their home countries — or, perhaps, to be […]

[…] are essentially the same.” In fact, as Judge Bates also noted (and as I explained in depth in an article at the time), the review process at Bagram is both “inadequate” and “more error-prone” than the […]

[…] as the Post explained, “no formal process to review prisoner status,” and, as District Court Judge John D. Bates noted in April, the system that was then put in place — consisting of Unlawful Enemy Combatant Review […]

[…] obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and “rendered” to Bagram, where they […]

[…] obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and “rendered” to Bagram, where they […]

[…] the plans for a new review process was cynically planned to persuade an appeals court to overturn a ruling in March by District Court Judge John D. Bates, who granted habeas corpus rights to the rather smaller […]

[…] prison at Bagram airbase — where some of these men have been held for six years — even though the judge ruled that “the detainees themselves as well as the rationale for detention are essentially the […]

[…] the lawyers out), but no lawyer has set foot in Bagram, and, although a District Court judge ruled last March that foreign prisoners rendered to Bagram and held for up to six years have the same habeas rights […]

[…] number of these men remained in Bagram, four of whom — three foreigners and an Afghan — successfully challenged their indefinite detention without charge or trial in a habeas corpus petition in March last year, in a ruling that has been […]

[…] other countries, three of whom are currently waiting to see if the Court of Appeals will overturn the right to habeas corpus that was granted to them by Judge John D. Bates last March, and raised questions about the whereabouts of other […]

[…] other countries, three of whom are currently waiting to see if the Court of Appeals will overturn the right to habeas corpus that was granted to them by Judge John D. Bates last March, and raised questions about the whereabouts of other […]

[…] that four others are still in Bagram (three of whom are awaiting a US appeals court ruling on their successful habeas corpus petition last March), and that five others were returned to Libya in […]

[…] risk of torture in their home countries; fighting a court order extending habeas corpus rights to a handful of foreign prisoners rendered to Bagram from other countries; preventing the release of any cleared prisoners to Yemen […]

[…] main US prison in Afghanistan, at Bagram airbase, where they had been held for up to seven years, secured a legal victory in the District Court in Washington D.C., when Judge John D. Bates ruled that they had habeas […]

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington